# United States v. Angelo Bertolotti

> Court of Appeals for the Second Circuit · November 10, 1975 · 529 F.2d 149

URL: https://www.frixlaw.com/law-library/cases/9462412

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Angelo BERTOLOTTI Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** November 10, 1975
- **Citations:** 529 F.2d 149
- **Precedential status:** Published
- **Opinion:** Concurrence by Friendly
- **Judges:** Moore, Friendly, Van Graafeiland
- **Cited by:** 138 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462412

## How later opinions describe it (automated extraction)

- holding that “the evidence reveals a sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding there was a prejudicial variance where the jury spent “two entire days listening to obviously shocking and inflammatory discussions about assault, kidnapping, guns and narcotics” and concluding the prejudicial nature of this evidence “cannot be underestimated. No defen…
- finding “sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding that defendant was prejudiced at trial by two days of testimony about assault, kidnapping, guns and narcotics although there was no evidence linking the defendant to these acts
- finding a prejudicial variance based in part on the fact that “the crimes of the various appellants . . . scarcely resembled one another”

## Opinion text

HENRY J. FRIENDLY, Circuit Judge
(concurring):
Applauding Judge Van Graafeiland’s opinion as I do, I would go further in one respect, namely, by directing dismissal of the indictment rather than leaving the district court an uncharted discretion whether and how to proceed with this incubus. The opinion convincingly demonstrates that the indictment cannot fairly be' read as charging the Flynn conspiracy alone. Granted that we have authority to take the course directed by my brother, see United States v. Russano, 257 F.2d 712, 716 (2 Cir. 1958), we are not obliged to do so; one reason why the Russano court believed that dismissal “would not be in the interests of justice” doubtless was that, as to one of the two conspiracies, the statute of limitations apparently had run. Here the statute of limitations would present no obstacle to new indictments and neither, if Ball v. United States, 163 U.S. 662, 672 , 16 S.Ct. 1192 , 41 L.Ed. 300 (1896), retains the health I believe it has, would double jeopardy.
Under such circumstances the interests of the judicial system, of the defendants and, for that matter, of the Government would be best served by dismissing the indictment for failure of proof of the single conspiracy charged and allowing the Government to seek new indictments for the several conspiracies to which the evidence points. However, in order to permit a disposition to be made, I subordinate my personal views and join - in Judge Van Graafeiland’s opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462412. Public record. Not legal advice.